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Transcript of Moldova Mediation Concept Paper.pdf
Mediation of commercial disputes in the Moldovan courts
CEDR International Dispute Resolution Centre 70 Fleet Street London EC4Y 1EU Tel +44 (0)20 7536 6000 Fax +44 (0)20 7536 6001 E-mail [email protected] www.cedr.com
i
Executive summary of recommendations
Legislative framework
Mediation Council
Review of Mediation Council capacity to fulfil the role required under the draft mediation law.
Civil Procedure Rules
Consideration should be given to a CPC mediation referral mechanism for judges.
Stakeholder engagement Judiciary
Mediation awareness to be part of sitting judges’ continuing professional development and in the curriculum for trainee judges.
Lawyers
Intensive awareness raising campaign to lawyers about the benefits of mediation to them and to their client needs to be undertaken, enlisting the support of high profile champions within the legal community.
Business
A significant outreach campaign to businesses about the benefits of mediation and enlisting key sector champions with the assistance of the American and Moldovan Chambers of Commerce and Industry.
Public
A wider awareness campaign focussed on the general public and potential disputants should be considered.
Building capacity and capabilities Mediator skills training
Consideration should be given to standardising a mediation curriculum based around interactive skills training; and standardising the assessment criteria for mediation trainers.
ii
Continuing Professional Development (CPD) be mandatory for mediators qualified under all systems of assessment to assist in creating a quality proposition for mediators within Moldova. Council of Mediation to foster a membership forum for mediators as a vehicle for encouraging professional development. Develop a cadre of master trainers (medium-term objective).
Administration of the pilot programme
Separate staff should be engaged for the mediation pilot if this is possible. In addition, consideration should be given to nominating a senior individual to be the official spokesperson for the mediation pilot scheme so that there is a focal point for its stakeholder engagement and marketing activities. Individuals responsible for case administration must be trained in mediation case management.
Strategy for mediation pilot
Scope and case suitability
The mediation programme within the Court should focus on cases of a commercial nature only.
Relationship with the Courts
The model to be used should be a regular court-annexed mediation programme.
Voluntary vs. mandatory
Mediation at the Moldovan Court should be a voluntary process, which both disputants need to agree to, in order for it to proceed.
Incentives to mediate
Court to consider what incentives and sanction can be used to encourage parties to mediate. Judges to be incentivised to refer cases to mediation through recognition of such cases, in their disposal statistics
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Operation of the pilot programme
Screening and referral of cases
There should be a presumption of referral to mediation for most cases of a commercial nature, with the judge allocating the case making the final decision on referral to mediation upon reviewing the file, claim and defence.
Appointment of mediator
Mediators initially should be appointed from those who are CEDR accredited mediators through the EBRD project. The court should develop a set of minimum criteria for mediator skills training programme from which it will accept mediators onto the panel in the future. Sitting judges should not mediate cases in the mediation programme. An agreed fee should be paid to mediators as part of the pilot programme.
Mediation process
The following should be the broad structure of the mediation process in the Moldovan Courts’ mediation programme: 1. The parties should have 60 days from referral to mediation to settle the case. This
could be extended by 1 more month with the consent of both parties.
2. There should be a period of 30 days from the invitation to mediate to the parties agreeing to mediate. If no agreement to mediate is reached within this time the case should be referred back to the court for listing for trial.
3. The mediation session should be 3-4 hours in length, but there should be no limit to the
number of sessions, which should be left to the discretion of the mediator.
4. The mediations will take place at a premises designated suitable by the court. As a minimum 4 rooms should be available for mediation.
5. A mediation agreement will need to be drafted, which parties will sign on the day of
the first mediation session.
6. To confirm settlement in mediation, a simple and effective method for turning settlements into consent decrees should be established.
1 Introduction ....................................................................................................... 1
2 Creating the right environment ............................................................................... 2
Legislative framework ............................................................................................... 2
Regulation, organisation and administration of mediation ............................................... 4
Training of mediators ............................................................................................ 4
Civil Procedure Code ............................................................................................. 5
Stakeholder engagement ............................................................................................ 5
Judiciary ............................................................................................................ 6
Lawyers ............................................................................................................. 7
Business ............................................................................................................. 7
3 Building capacity and capabilities ............................................................................ 9
Mediator skills training .............................................................................................. 9
Administration of the pilot programme ........................................................................ 11
4 Strategy for mediation pilot ................................................................................. 12
Scope and case suitability ........................................................................................ 12
Relationship with the Courts ..................................................................................... 12
Voluntary vs. mandatory .......................................................................................... 13
Incentives to mediate ............................................................................................. 14
5 Operation of the pilot programme ......................................................................... 16
Administration process ............................................................................................ 16
Screening and referral of cases .............................................................................. 16
Appointment of mediator ..................................................................................... 18
Mediation process .................................................................................................. 18
Referral time-frame ............................................................................................ 19
Mediation time-frame ......................................................................................... 19
Session length ................................................................................................... 19
Number of sessions ............................................................................................. 19
Mediation location .............................................................................................. 19
Documentation required ....................................................................................... 19
Outcomes from mediation ........................................................................................ 19
Enforceability of settlements ................................................................................ 20
Non-settlement .................................................................................................. 21
6 Conclusion ....................................................................................................... 22
1
1 Introduction
1.1 This report has been prepared as part of a project funded by the European Bank for
Reconstruction and Development (EBRD) to assist in Justice Sector Reform within Moldova,
particularly through the strengthening the system of alternative dispute resolution (ADR) in
Moldova and the promotion of its use, especially in the business community.
1.2 The aim of this report is to set out recommendations for optimum structure for mediation of
commercial disputes in the Moldovan Courts, including the design of a pilot programme for a
court-annexed scheme.
1.3 It has been prepared by consultants from the Centre for Effective Dispute Resolution (CEDR)
which is a specialist conflict management and dispute resolution organisation based in
London, United Kingdom. Over the years CEDR has advised many jurisdictions and worked
with many courts in different parts of the world on establishing court-based mediation
programmes.
1.4 The CEDR consultants were supported by Moldovan legal consultants from the firm, ACI
Partners.
1.5 In the research work leading to this report, the CEDR and ACI consultants met with
representatives from the Ministry of Justice, National Institute of Justice, Superior Council of
Magistracy, Court of Appeal, two Chambers of Commerce, and the Mediation Council. All
groups provided valuable insights into how best to integrate mediation within Moldova.
1.6 We also attended a Mediation Roundtable organised by the Ministry of Justice.
1.7 We would wish to acknowledge the constructive and engaged manner of all participants and
the common goal of beginning the process of planning a successful mediation system.
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2 Creating the right environment
2.1 Mediation within Moldova has many high level supporters, including being keenly advocated
both by the present Minister of Justice and by the President of Moldova, himself a jurist and
former head of Moldova's Supreme Magistrate Council.
2.2 The government of Moldova has prepared a Justice Sector Reform Strategy for the period
2011-2015 (Strategy), developed with the assistance of the European Union and the Council of
Europe. The Strategy represents a comprehensive and integrated sector-wide approach to
challenges facing the Moldovan government in the administration of justice. It lays down a
common framework for all reform efforts in the justice sector of Moldova, integrating the
various concepts and action items to be completed over the reform period.
2.3 One of the seven pillars of the Strategy is the role of justice in economic development, under
which several measures are contemplated to improve the efficiency of the judiciary and
thereby influence economic growth. One such measure is to strengthen the system of ADR in
Moldova and promote its use, especially in the business community.
2.4 The implementation of ADR systems, specifically mediation, has come as a priority to increase
access to justice, increase trust in the justice system, decrease pendency of the courts, and
promote inward foreign direct investment.
2.5 However, in order for ADR to thrive, it is essential that it operates within a supportive legal
and commercial environment.
Legislative framework
2.6 During the course of our stakeholder interviews, there was a great deal of discussion about
whether there was any need for legislative and procedural amendments in order to encourage
and/or provide a more supportive framework within which mediation might become
successful.
2.7 Moldova currently has currently a Law, No.134 of 14.06.2007, on mediation, but there was
general consensus at the Mediation Roundtable hosted by the Minister of Justice that it has
not been effective. In one discussion, a former judge of the Commercial Court proclaimed
that in the four years since the introduction of the initial mediation law “I have not seen any
cases go to mediation.”
2.8 Further to this, in the Mediation Roundtable meeting, the Minister of Justice was quoted as
stating that “99% of people surveyed agreed the purpose of the mediation law has not been
accomplished.”
2.9 In meetings with stakeholders, various opinions were offered as to reasons behind this lack of
take-up of mediation within Moldova:
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o In a meeting with representatives of the business sector at the American Chamber of
Commerce, they stated that there was a general lack of awareness within both the legal
and business sectors about mediation and even those that were aware currently see no
value in its application;
o Likewise, in meetings with various members of the judiciary, they observed that greater
awareness was desirable;
o In meetings with judges and judicial bodies, concern was expressed about the lack of
practical referral mechanisms within the courts and the effectiveness of the enforcement
of awards;
o Many stakeholders highlighted the current lack of incentives and or sanctions for
mediation, both of which they regarded as essential to encourage its use;
o Representatives of the legal and business communities expressed a concern about the lack
of standardisation of training curricula within the jurisdiction.
2.10 Reflecting this experience, a new Mediation Law has been drafted which is clearly well
researched and makes reference to a number of policy documents including the UNCITRAL
Model Law on International Commercial Conciliation, the European Union Community
Directive 2008/52/CE, and Recommendations of the Council of Europe. Evidently, the
Ministry of Justice drafters took note of mediation laws and practice in other similar civil law
jurisdictions, and as a result the proposed legislation appears generally sound and consistent
with international norms1.
2.11 The draft mediation law outlines:
o Chapter 1: General Definitions
o Chapter 2: Council of Mediation
o Chapter 3: Certified Mediator. Mediation Organisation
o Chapter 4: Principles of Mediation
o Chapter 5: Mediation Procedure
o Chapter 6: Special Provisions on Mediating in Civil and Commercial Law Disputes
o Chapter 7: Special Provisions on Mediating in Criminal Cases
1 Although, for the avoidance of doubt, we make no comment on chapter 7 of the draft law, which deals with mediation in
criminal cases and is, therefore, outside the scope of this project,
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o Chapter 8: Support of Mediation by the State.
2.12 Captured within the law are many articles which are used in best practice around the globe
and which should provide a solid foundation for mediation to grow in Moldova. The draft law
specifically tackles issues such as the regulation and organisation of mediation and the
training of mediators.
2.13 CEDR has several immediate comments on both areas.
Regulation, organisation and administration of mediation
2.14 Under Chapter 2 of the draft law, the Council of Mediation becomes the central institution for
promoting, organising and administering mediation within the jurisdiction.
2.15 The draft law provides details of the seven members of the Council, and specifies that it may
establish a technical secretariat, but otherwise it is largely silent on the methodology of how
the Council is to go about its work and, in particular, the level of supporting infrastructure
that may be required.
2.16 In CEDR’s experience, the successful development, regulation and promotion of mediation
within a jurisdiction can become a substantial undertaking which will require proper
resourcing. The Council’s secretariat will need a formal base and all of the logistical
considerations required for an operational office, and may also require input from a range of
professional skills, including marketing professionals in particular. It is important that the
Council is established and operates as a professional organisation, rather than merely as a
committee of distinguished members.
2.17 In order to cement its role as the flagship organisation for the development of mediation to
across the legal and business culture of Moldova, it is specifically recommended that the
Council has a key voice in inter-departmental meetings regarding the variety of approaches to
be adopted when implementing mediation-related policy.
Recommendation: Review of Mediation Council capacity to fulfil the role
required under the draft mediation law.
Training of mediators
2.18 Under Chapter 3, there is reference to initial and continued professional development for
mediators, there are no details as to the nature of that training other than that Article 6(4)
specifies a minimum threshold of 40 hours’ duration.
2.19 This emphasis on duration rather than approach to training is, in CEDR’s experience, a
common mistake made in the early stages of mediation development. Although it largely
operates in a legal context, effective mediation training requires a very different approach to
legal education – the rules of mediation may be learned in a formal classroom setting, but the
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key challenge of developing professional “soft” skills such as communication, questioning,
listening and negotiation coaching can only be developed through skills training which has a
very strong element of practicing, feedback and coaching (i.e. learning by doing, rather than
learning by being told).
2.20 More specific recommendations for the development of mediator skills training are set out in
chapter 3 below.
Civil Procedure Code
2.21 The difficulty on relying on a new mediation law or amendments to current legislation is that
it takes time to navigate through the process of enactment. Greater traction may be
achieved if the court-annexed programme were to be accessed through amendments to the
Civil Procedure Code. This amendment would facilitate the introduction of court-based
mediation to allow judges an effective mechanism to effectively refer cases, allow the
promotion of mediation through communication with parties, and the regulation of the role
and status of the mediator. More attention on court-annexed referral system is available in
section 4.
2.22 Any changes to the CPC regarding implementation of a court-annexed system should be left
until after the pilot has been conducted, as there will not be sufficient infrastructure for its
extension to all courts especially at the early stages. However, it may be necessary that the
Ministry of Justice or Superior Council of Magistracy issue a decree to organise the pilot in the
designated courts as the pilot would have to be tied to existent regulations.
Recommendation: Consideration should be given to a CPC mediation referral
mechanism for judges.
Recommendation: Consideration to be given about any necessary conditions in
which the pilot will operate.
Stakeholder engagement
2.23 Greater and more effective use of mediation has a range of potential benefits. For the parties
to commercial disputes, it offers dispute resolution that can be quicker and cheaper, with
more tailored outcomes, than is often possible through the courts; this frees up funds that are
otherwise earmarked for litigation contingencies. For courts, mediation can substantially
reduce case load burdens, improve clearance rates, and raise efficiency in the administration
of justice; this can allow the state to streamline administrative costs in the justice sector.
2.24 However, for these benefits to be realised in Moldova, it is critical that commercial mediation
becomes an effective and attractive alternative that is well understood by potential litigants.
This requires extensive activities to promote the benefits of mediation. The scale of this
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challenge cannot be underestimated - the experience of ADR development programmes the
world over is that creating demand for services is a far harder challenge than training
mediators or building organisational capacity2.
2.25 The key reason for the recurring difficulty in growing demand for mediation services is that an
initiative faces two challenges:
o First, there is a need to educate its key audiences about what it has to offer – this often
means explaining to them the concept of mediation, highlighting its benefits and
demonstrating how it works.
o However, this awareness-raising work does not of itself generate any significant take up
of services, and a more targeted sales campaign is therefore generally required in order
to persuade parties and their advisers to purchase a mediation solution for any particular
dispute.
2.26 Such work to promote the concept of mediation is very resource-intensive and the Mediation
Council should therefore be careful to enlist as many collaborators as possible in this effort.
Suitable candidates would be leading lawyers and business organisations, as well as the
government and judiciary. Individual mediators, once trained and accredited, should also be
encouraged to act as champions for the cause.
2.27 This recognition of the importance of promoting mediation as an alternative form of dispute
resolution also emerged very clearly from the consultants’ meetings with representatives of
the Judiciary, the Ministry of Justice and business groups,
Judiciary
2.28 In order to most effectively implement mediation within the courts, judicial awareness of the
process is essential. Not only is this work required in order to establish the role of the
judiciary, but it will also have an impact on the level of take-up of mediation - it is well
established that lawyers are influenced by the attitudes of the judiciary.
2.29 Mediation awareness for sitting judges could be adopted through their continuous professional
development run by the National Institute of Justice, and incorporated into the initial
curriculum for judges-in-training.
2.30 The key messages to be delivered to the judiciary relate to the overall societal advantages of
the processes. These can be supplemented by additional benefits of more personal interest
to the judiciary – specifically, use of mediation can lead to a reduction in the court’s
workload, thereby improving its efficiency and enabling resolution of more cases in less time.
2 “Key Lessons Learned for Developing ADR projects…..Creating demand is more difficult than creating supply. Incentives
have to be there. To mitigate the lack of demand, attract quality cases by establishing a good mechanism for case selection and create awareness…” IFC Alternative Dispute Resolution Manual: Implementing Commercial Mediation, page 80
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Recommendation: Mediation awareness to be part of sitting judges’ continuing
professional development and in the curriculum for trainee
judges.
Lawyers
2.31 In many jurisdictions, mediation can be seen as a threat to the lawyers’ role in the court
process. Getting lawyers to encourage their clients into mediation and not block referrals to
the mediation programme is essential to the success of any programme/pilot.
2.32 Lawyers can also have a multiplier effect – if a single law firm can be persuaded to inform all
of its key litigation clients about mediation, then a larger number of organisations can be
reached more quickly than if they had to be approached individually. An in house ‘ADR
Champion’ can promote mediation more effectively through the firm’s marketing programme
than any amount of plain advertising.
2.33 Accordingly an intensive awareness campaign must be undertaken with lawyers, in order for
them to see the benefits of mediation to them and to their clients. Enlisting the support of
high profile ‘champions’ of mediation from within the legal community should be actively
pursued, to serve as a focal point to encouraging lawyers to refer cases to mediation.
2.34 The key message to be delivered to lawyers is that the process is beneficial to their clients.
Equally important, lawyers must be reassured that the introduction of newer, faster and
lower cost techniques of dispute resolution will not threaten their own commercial interests.
Hence, an additional key message to lawyers is that, rather than representing a threat to
their future revenues, mediation can in fact provide an opportunity for increased business by
increasing client satisfaction and confidence in lawyers’ abilities to achieve cost effective
resolution of disputes.
Recommendation: Intensive awareness raising campaign to lawyers about the
benefits of mediation to them and to their client needs to be
undertaken, enlisting the support of high profile champions
within the legal community.
Business
2.35 At present although a mediation service is offered by several institutions, such as the
Chamber of Commerce and Industry, there has been little if any take up. Feedback from
representatives of the business community at the American Chamber of Commerce is that a
lack of awareness is a major contributing factor. A significant outreach campaign to engage
businesses in this process is, therefore, recommended.
2.36 In promoting mediation, the key message to be delivered to corporates is that the process
brings significant commercial benefits. Specifically:
8
o Use of mediation can result in significant savings in the time needed to resolve disputes –
faster resolution leads to reduced uncertainty and, therefore, lower business risk.
o There are also significant cost savings to be made, not only in terms of reducing legal fees
but also by way of avoiding wasted management time caused by the distractions of long-
term disputes3.
o Less formal processes also provide opportunities to maintain individual business
relationships that might otherwise be significantly damaged by protracted litigation.
o In the longer-term, an increased use of mediation by business has the potential to
improve the overall business climate, not only by providing opportunities for improved
dialogue and early resolution of disputes but also by freeing up the courts such that they
can focus their resources on those few matters that do require their attention.
2.37 The diversity of the corporate audience means that it is very difficult to access them on a
one-to-one basis. Accordingly, it is generally more cost effective within a domestic market to
work through “multiplier” organisations such as Chambers of Commerce and other industry
associations.
2.38 By way of example, the American Chamber of Commerce have already indicated that they are
agreeable to the preparation and distribution of pamphlets and marketing materials to
promote mediation to their members.
2.39 Such organisations should be engaged in specific initiatives to promote mediation within
particular sectors. Suitable sectors would be those which are known to have a high incidence
of significant disputes (e.g. construction and infrastructure development) and/or which are
likely to attract significant international involvement as a consequence of Moldova’s
continued economic development.
Recommendation: A significant outreach campaign to businesses about the
benefits of mediation and enlisting key sector champions with
the assistance of the American and Moldovan Chambers of
Commerce and Industry.
Recommendation: A wider awareness campaign focussed on the general public
and potential disputants should be considered.
3 It is important to stress this second element, the potential savings in management time, not only because research has shown that this cost is often significantly greater than the legal fees involved in a dispute but also because it is a more palatable message for the legal community.
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3 Building capacity and capabilities
Mediator skills training
3.1 The proposed new Mediation Law clearly envisages the development of a professional group of
suitably certified mediators and mediation organisations within Moldova. Thus consideration
will need to be given not only to the nature of that training but also to the question of how
aspiring mediators’ training and skills are to be assessed and monitored.
3.2 Historically there have been a variety of approaches to training within Moldova, each based
upon different curricula. This diversity, and the lack of an acceptable common standard, has
been highlighted as a concern by business representatives. There also appear to be concerns
about the level of training delivered. In a number of meetings with the CEDR consultants,
participants expressed doubts about the abilities of mediators qualified under former systems.
Most characterised past courses as having been taught by psychologists and legal professors
and giving participants a thorough understanding of theory of mediation but little practical
skills development. We understand also that the practical application of these skills is not
usually assessed in this type of training.
3.3 As previously noted, based upon over 20 years’ experience of training and accrediting
mediators, CEDR believes it is essential that:
o mediator skills training includes significant elements of skills practice, feedback and
coaching, in preference to classroom-based “book learning”;
o in order to embed learning in adults, their adoption of the necessary skills of effective
mediation should be assessed by reference to a clear competency framework.
3.4 Given that the court (and, in practice, the State) will be in the position of effectively
endorsing individual mediators through their involvement in the court system, it is clearly also
important from a public policy perspective that the selected individuals have been assessed
and confirmed as having the particular skills and competencies required.
3.5 This is the approach which CEDR adopts in its own mediator skills training throughout the
world, and which has been found to be highly effective in many other jurisdictions. As
detailed in the attached Appendix A, the course offers delegates the opportunity to develop
their skills through role-play and then to demonstrate their skills in assessment by competent
mediation trainers who are themselves all experienced practicing mediators.
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3.6 Using this as a reference point, CEDR recommend a standardisation of approaches with a
robust system of certification supervised through the Council of Mediation. Appendix B sets
out details of CEDR’s own Assessment Framework4.
3.7 For those mediators that have qualified under the former system, it is recommended that
they have mandatory continuing professional development (CPD) in the application of their
skills. Additionally, CPD should be mandatory for mediators qualified under newly developing
systems. In both instances, this would not only ensure quality assurance but ensure that
mediation is established as a reputable profession within the jurisdiction.
3.8 The Council of Mediation should also promote the development of a membership forum for
established mediators in order to encouraging their mentoring of newly accredited mediators
and also to create a knowledge sharing network.
3.9 A final need that has been identified in meetings with Ministry of Justice is that there is a
present lack of mediation master trainers within Moldova. This may not be an immediate
concern given the proposal that the initial cadre of mediators for the proposed pilot is trained
by CEDR as part of the EBRD project. In the medium-term, however, there will be clear need
to develop trainers, ideally from amongst the mediation practitioner group.
Recommendation: Consideration should be given to standardising a mediation
curriculum based around interactive skills training; and
standardising the assessment criteria for mediation trainers.
Recommendation: Continuing Professional Development (CPD) to be mandatory
for mediators qualified under all systems of assessment to
assist in creating a quality proposition for mediators within
Moldova.
Recommendation: Council of Mediation to foster a membership forum for
mediators as a vehicle for encouraging professional
development.
Recommendation: Develop a cadre of master trainers (medium-term objective).
4 For the avoidance of doubt, this recommendation does not mean to imply that only CEDR training should be approved. Rather, any training course can be approved provided that it meets the criteria of enabling participants to achieve (and demonstrate that they have achieved) the core competencies required for effective mediation.
11
Administration of the pilot programme
3.10 In order for the proposed pilot programmes to be effective, there will also be a requirement
to select and develop the capabilities of the staff who are to administer those programmes.
3.11 There are broadly two options of how the court-annexed programme can be administered,
namely to assign existing court staff to dealing with cases, or to have a separate staff within a
court-annexed mediation pilot scheme. The relative advantages and disadvantages of each
approach are as follows:
o Existing staff dealing with all cases
This would centralise the process and would allow ease of information exchange between
the court and the mediation pilot scheme. Staff would have broad understanding of the
processes and thus would be able to provide support to litigants as and where necessary.
However, using the same staff might reduce the ability of the mediation scheme to
develop its own identity and culture. The court might not be as flexible with staffing,
and it could become confusing for users of the mediation pilot scheme if the staff are the
same as those who work for the court. This might also add an extra workload burden on
existing staff, as well as requiring them to be trained in managing a process which is not
familiar to them and quite different from managing cases through the normal court
system.
o Separate staff within the centre
This approach would provide the mediation pilot scheme the opportunity to create its own
identity and culture; and the staff would be able to provide specialist knowledge and
guidance about the use of the centre. It would also allow for more effective
management of the cases within the mediation programme.
Such an approach may, however, carry additional cost implications in terms of the
numbers of staff required. Consideration will also have to be given to the practicalities of
case management and information technology – clearly if cases for both the courts and
the mediation pilot are to be managed and tracked using the same systems, it might be
operationally more convenient to share staff. In such situation, however, it would still be
important to promote the separate identity of the mediation service wherever possible.
3.12 On balance, the CEDR consultants recommend that separate staff are engaged for the
mediation pilot if this is possible. In addition, consideration should be given to nominating a
senior individual to be the official spokesperson for the mediation pilot so that there is a focal
point for its stakeholder engagement and marketing activities.
Recommendation: Individuals responsible for case administration must be
trained in mediation case management.
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Recommendation: For the Ministry of Justice or Superior Council of Magistracy
to consider nomination of a senior individual to be the
official spokesperson for the mediation pilot.
4 Strategy for mediation pilot
4.1 This chapter sets out some of the strategic issues to be addressed as part of the design of the
proposed mediation pilot.
Scope and case suitability
4.2 The question of what cases are suitable for mediation often causes a great deal of discussion.
In this instance, however, there was widespread agreement by all workshop participants that
all of types of commercial cases identified by the diagnostic study would be appropriate for
mediation.
4.3 Whilst other types of case may also be suitable for mediation (for example matrimonial and
certain criminal cases), these should not be included within the scope of the proposed pilot.
Recommendation: The mediation programme within the Court should focus on
cases of a commercial nature only.
Relationship with the Courts
4.4 One of the key considerations in any court-connected mediation pilot is the question of its
positioning and relationship with the Court system. Two broad approaches are available:
o Court referred mediation
In this approach, the ADR centre has a close working relationship with the court system
but is not necessarily as part of it. Litigants can access mediation services either by way
of a referral from the court, or by making a direct approach (possibly even before any
formal litigation proceedings have been initiated).
One of the key benefits of a court-referred system is that the ADR centre is seen as
operating separately from the court and will have more flexibility in approach and
function. By its very definition the mediations that are referred to the centre will be
voluntary, meaning parties will be free to agree or disagree to the referral. This
separation can, however, also present a challenge in that there might be reluctance by a
party to agree to referral to a centre that is outside the court. Also parties look to the
court to provide an unbiased resolution to their dispute. Anything outside of that venue
might be viewed with suspicion.
o Court-annexed mediation
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In Court-annexed mediation, the service is provided by the court as part of the same
judicial system, and the court controls the entire process.
Within this model, there are two options as to how cases can get to mediation. In the
“regular” model of court-annexed mediation, cases go into the court system and it is the
judge who would refer the case to ADR.
The alternative model, usually termed “multi-door”, the system of ADR is still supervised
by the court, but does not rely on cases entering directly into litigation. Rather, cases
come into the court system and are then allocated either to an ADR or litigation track,
either at the choice of litigants or by the court staff (although some jurisdictions deploy a
dispute management panel of allocation judge to make such decisions). If mediation is
not successful, the case is then referred onto the mainstream litigation process.
4.5 Discussions in several of the consultants’ meetings focused on which model would be best
suited for the court; and there was a broad consensus that a court-annexed system would be
most suitable for Moldova.
4.6 The fact that the mediation programme would part of the court structure was regarded as
providing reassurance to litigants. Although there is a national case management and
allocation IT system, there was still a belief that the judges should have some active role in
determining which cases should be considered for mediation; and again the involvement of a
judge should make it more likely that parties would agree to mediation. It was recognised,
however, that the involvement of a judge in the screening of cases must also be balanced
against the need for the expeditious handling of each case, and that the screening process
must not in itself materially add to the administrative burden on the judges.
4.7 Given these views, CEDR considers that the regular model of court–annexed mediation would
be the most suitable for the court. This regular model is also recommended in that it entails
the least amount of change to the current court administration process, with a screening and
referral process being able to be utilised alongside what works best within the current
administration of the court.
Recommendation: The model to be used should be a regular court-annexed
mediation programme.
Voluntary vs. mandatory
4.8 While all agreed that mediation would provide the court system added benefit, there was
some disagreement about whether mediation should be mandatory or voluntary, or whether
this might depend on the type of case being considered (e.g. should all probate cases be
mandatorily referred to mediation?).
o Voluntary mediation
14
In a voluntary system, the court/judge would offer the parties the possibility of resolving
the dispute through mediation or another model, leaving the decision about whether to
take part with the parties. Traditionally most court-annexed programmes are voluntary.
o Mandatory mediation
This process is mandatory only in terms of entry into the process, in that parties must
attend mediation, but not in terms requiring a resolution to the dispute, as the mediator
cannot force the parties to a resolution.
4.9 There are arguments in support of both approaches and each has benefits and challenges. No
matter whether mediation is voluntary or mandatory, each offers an opportunity for the
resolution of a dispute. While settlement rates of both systems vary, the benefit of mediation
was acknowledged and it was agreed that if this could provide satisfaction for at least 50% of
the cases in Moldova, then this would help deal with the huge backlog of cases that currently
exist in the court (approximately 54,000).
4.10 However in this instance CEDR would recommend that a voluntary model be adopted for
practical reasons. Any attempt to make mediation mandatory would be a large shift in the
approach of the court, and would undoubtedly encounter resistance by lawyers, who might
argue that their client’s right to go to trial is being removed. Significant resistance by
lawyers might see the initiative flounder in the early stages, and it would therefore be
advisable to start with a voluntary approach and try to use the successes that such model
brings in order to encourage take-up rather than go down a mandatory route.
4.11 A second reason is that a move to mandatory mediation would most likely necessitate changes
to the Civil Procedure Code and also possibly supporting legislation. All of these things would
take time and be bound to encounter resistance from lawyers and others opposed to
mediation.
Recommendation: Mediation at the Moldovan Court should be a voluntary
process, which both disputants need to agree to, in order for
it to proceed.
Incentives to mediate
4.12 In some jurisdictions courts encourage parties to mediate by introducing incentives or
imposing sanctions and these can include:
o Incentives for the parties:
Full or part payment of state / court fees
Stays of proceedings
15
Preference for setting down for trial if no settlement
o Incentives for judges:
Extra recognition for cases referred to mediation by a judge in disposal statistics. As an
example, in Croatia as part of the Judicial monitoring process, judges were given 2 credits for
the disposal of a case through mediation, while disposal by trial received 1 credit.
o Sanctions
Adverse costs orders (such as the Civil Procedure Rules of England and Wales). Rule 44.3(2) of the Civil Procedure Rules of England and Wales allows Judges to penalise parties who unreasonably refuse to attempt mediation by awarding a higher level of costs against them if they are unsuccessful at trial, or recovering a lower level of their costs if they are successful at trial.
4.13 It was the feeling of many participants that incentives could be applied to the Moldovan Court
system to promote the use of mediation. In particular, the incentive for judges to refer cases
was regarded as a possibility but require further discussion on how judges refer cases to
mediation.
4.14 There was general discussion that while adverse cost orders could be made in theory, in
practice this would not work as judges would be reluctant to make such orders especially at
this initial stage of implementation. However CEDR would still encourage the court to
consider more widely whether incentives and sanctions can be built into the programme in
order to encourage parties to mediate.
Recommendation: Court to consider what incentives and sanction can be used to
encourage parties to mediate.
Recommendation: Judges to be incentivised to refer cases to mediation through
recognition of such cases, in their disposal statistics.
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5 Operation of the pilot programme
Administration process
5.1 Set out below are the broad stages of administering mediation through a court-annexed
programme:
Screening and referral of cases
5.2 The method of screening cases and the mechanism to refer cases into the mediation
programme are essential decisions when implementing any court-annexed mediation
programme. Of the different mechanisms presented, there was agreement that it should be
something that judges and other court staff would feel comfortable and confident using.
5.3 The main question that was considered was: where does the screening and referral occur?
5.4 From experience from other court-annexed systems around the world there are a number of
different options in this respect. These are set out below with discussion from the workshop
summarised for each:
17
o Automatic referral if an agreed category of dispute - with opt out by parties
While this held some appeal for participants as it facilitates referrals into the mediation
process with the lowest administrative burden, the concern was that such a system may
exclude the judge from being part of the decision-making process about whether a case is
actually appropriate for mediation.
o Screened by court staff prior to allocation to a judge
While it was suggested that staff could be trained to assess the suitability of a case for
mediation, there was also discussion that there might be limited availability of staff who
could perform this function. Again the role of the judge was seen as important here and
therefore it was felt that this was not an appropriate method for the Moldovan courts.
o Screened by judge at preliminary stage of litigation process.
There was a general belief that the judges should ultimately decide which cases should be
referred to mediation, and this would be consistent with current practice. Judges would
review the case once the claim and defence have been received in order to determine its
suitability for mediation. It was also thought that if the judge in the case had made an
active decision to refer the case to mediation, then the parties might be more willing to
agree to the mediation. This role must not, however, create any excessive administrative
burden on the judge.
o Specialised case track management unit established to allocate to litigation of mediation
A specialised case management unit has worked well in many centres but again this limits
the role of the judge and there was a strong belief that the judge should be involved.
5.5 Accordingly CEDR would recommend a hybrid approach that starts with a presumption that
certain categories of cases will be referred to mediation. This should be indicated on the file
when the case is allocated to the judge; and the final decision on whether the particular case
is actually suitable for mediation would then be taken by the judges once they have reviewed
the claim and the defence.
Recommendation: There should be a presumption of referral to mediation for
most cases of a commercial nature, with the judge allocating
the case making the final decision on referral to mediation
upon reviewing the file, claim and defence. In order to
facilitate this, a decree may be necessary by the Ministry of
Justice or Council of Magistracy detailing the court referral
process and criteria for referral.
18
Appointment of mediator
5.6 There was general agreement that trained mediators must be used in the pilot in order to
ensure a high quality of service to disputants and to ensure the mediation programme is
successful in resolving disputes.
5.7 One possible solution for establishing the initial panel might be that all who attend and are
successfully accredited through the CEDR/EBRD mediator skills training course could be
eligible to mediate in the programme. (Refer to Appendix A for course description and a
breakdown of content).
5.8 At a later stage, it is not envisaged that the courts would host mediator training specifically,
but they and/or the Council of Mediation should establish strong criteria for identifying
eligible panel mediators within the jurisdiction.
5.9 There was some debate amongst participants and the CEDR consultants about whether sitting
judges should be used as mediators for court-annexed programmes. Although CEDR believe
that judges can make excellent mediators, for the purpose of the pilot it is recommended
that the panel of mediators does not include sitting judges.
5.10 In relation to the remuneration of the mediators, those participating within this pilot will be
paid a fee for mediating such disputes, funded by the EBRD project. While it is acknowledged
that there is restricted funding for this, it is CEDR’s experience that mediators may be happy
to be involved in this pilot programme on an unremunerated basis, in order to gain
experience.
Recommendation: Mediators initially should be appointed from those who are
CEDR accredited mediators through the EBRD project.
Recommendation: The court should develop a set of minimum criteria for
mediator skills training programme from which it will accept
mediators onto the panel in the future.
Recommendation: Sitting judges should not mediate cases in the mediation
programme.
Recommendation: An agreed fee should be paid to mediators as part of the
pilot programme.
Mediation process
5.11 The following summarises extracts of discussion on how the mediation process should broadly
operate within the court-annexed programme:
19
Referral time-frame
5.12 CEDR has previously advised in other jurisdictions that some 15 - 30 days should be given from
the time an invitation to mediate is sent for the parties to reply agreeing to mediate.
Following this, if no agreement is reached, then the file should automatically be transferred
back to the court. This period should give lawyers sufficient time to consider mediation and
refer it to their clients for consideration; and then for the lawyers to write back to the
mediation programme, notifying them of their clients decision. Conversely, it does not
permit undue delay if mediation is not selected.
Mediation time-frame
5.13 Mediation sessions should take place within a designated amount of time from the agreement
to mediate with possibilities for extension (but limited). If mediation is not completed within
this period, then the matter should be sent back to the trial judge, unless the parties agree
otherwise.
Session length
5.14 To manage court time effectively each mediation session should be limited to 3 to 4 hours.
This will also allow mediators to use time limits to their advantage. The preparatory training
for mediators will focus on the specific skills required to mediate in time-limited court
programmes.
Number of sessions
5.15 The number of sessions should not be limited and should be at the discretion of the mediator.
However any subsequent sessions should be scheduled only after consultation with the
appropriate centre staff about available time slots.
Mediation location
5.16 Ideally there should be at least 4 rooms available for mediation, which would allow two
mediations to take place simultaneously (with each mediation using two rooms). CEDR are,
however, aware that there are significant constraints on capacity to house mediation rooms.
Documentation required
5.17 A simple mediation agreement will be required to set out parties’ agreement to the process.
This should be provided by the centre to the mediator on the day for signing by the parties
prior to the commencement of the first session of the mediation. Sample of mediation
agreements used in English court programmes are available and can be provided to the court.
Outcomes from mediation
20
Enforceability of settlements
5.18 There was extensive discussion around issues of ensuring the enforceability of settlement
agreements arising from successful mediation, with the main risk perceived as being that
parties agree to a settlement with the mediator and then subsequently change their mind.
5.19 It is worth noting that the mediation process itself provides some assurances in this regard.
Firstly, because any settlement is by way of consent only, the majority of mediation
agreements are honoured without the need for any enforcement action. In addition, a
settlement agreement is itself enforceable as a contract.
5.20 This concern about enforceability is, however, prevalent in many jurisdictions in which
mediation is emerging, and it therefore generally advisable to seek to address it rather to
permit a possible barrier to entry into the process. The usual approach, therefore, is to
arrange for the court to “approve” mediation settlement agreements, and thereby to convert
them onto more formal court orders, which should be relatively simple to enforce. This is a
well-used procedure within the Civil Procedure Code and therefore should not present a
barrier for application on a mediation settlement agreement.
5.21 It is, of course, important that this process by which the court approves mediation settlement
agreements does not become a hearing by the judge of the underlying merits of the case.
The process should, therefore, be designed as one in which the judge confirms the parties’
agreement to the settlement, without necessarily having to spend a large amount of time
looking into the particulars of the case.
5.22 The process suggested by CEDR would enable the parties to go back before a trial judge
within one month of the mediation. The judge would confirm with the parties that the
settlement agreement reflected the agreed outcome and to vouch for their signature. In
effect, the judge would then confirm the settlement agreement as a court settlement.
5.23 Possible concerns arising from this approach might be that such a delay could be problematic
in terms of parties changing their minds about the settlement. It might also be seen as
increasing the administrative and time burden on the courts and the parties by having to
organise another hearing which they would have to attend.
5.24 One possibility used in another court-annexed programme would be to have a Duty Mediation
Judge who is not listed to hear cases while mediations are being undertaken. This judge
would be available for parties to go to immediately upon reaching agreement to get the
agreement made into a consent decree. Alternatively another approach used in England and
Wales is that the consent order is given merely upon application by the lawyers and no
hearing is required at all.
21
Non-settlement
5.25 There might be occasions when cases do not settle, and there needs to be a formal process
whereby they are referred back to the court and the stay of proceedings removed (if one has
been granted). This process needs to consider if the case would return to the judge originally
assigned and a suitable method of returning back into the court system.
5.26 Mechanisms should also be put in place to ensure that the judge assigned to any case that has
not settled at mediation is not provided with any information about what transpired during
the course of that mediation.
Recommendation: The following should be the broad structure of the mediation
process in the Moldovan Courts’ mediation programme:
1. The parties should have 60 days from referral to mediation to settle
the case. This could be extended by 1 more month with the consent
of both parties.
2. There should be a period of 30 days from the invitation to mediate to
the parties agreeing to mediate. If no agreement to mediate is
reached within this time the case should be referred back to the
court for listing for trial.
3. The mediation session should be 3-4 hours in length, but there should
be no limit to the number of sessions, which should be left to the
discretion of the mediator.
4. The mediations will take place at a premises designated suitable by
the court. As a minimum 4 rooms should be available for mediation.
5. A mediation agreement will need to be drafted, which parties will
sign on the day of the first mediation session.
6. To confirm settlement in mediation, a simple and effective method
for turning settlements into consent decrees should be established.
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6 Conclusion
6.1 The preceding discussions and recommendations are not meant to be an exhaustive plan for a
court-annexed programme within Moldova. Rather it is intended to provide some key
recommendations as a framework for beginning to develop an effective court-annexed
programme.
6.2 All participants of the workshops indicated that now was the right time for the introduction of
mediation into the court system, and it is hoped that his report will serve as blue print for the
Moldovan Ministry of Justice should they decide now to proceed with a court-annexed
mediation programme.
Graham Massie Ranse Howell
Director and Mediator Head of Negotiation & Leadership Academy, Mediator
Centre for Effective Dispute Resolution Centre for Effective Dispute Resolution
April 2013
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Appendix A
CEDR’s Mediator Skills Course Outline
Course content
The course constitutes approximately 50 teaching hours over a period of six days. This is extremely
intensive and a prompt start at 08.30 and a finishing time of 18.00.
Delegates will need to prepare thoroughly for this demanding programme and a minimum of 16 hours
pre-reading should be reserved in advance of the course. The Mediator Handbook, case studies and
role-play instructions are dispatched one month in advance and maximum benefit can only be
achieved if all delegates are familiar with these key materials.
The structure of the training would be as follows:
Days 1, 2 and 3
By alternating the methods of demonstration and practice we take delegates through the phases of
mediation training from the first day of the course. Skills and process are explored looked at and tried
in practical exercises. Case studies, based on actual mediations, are used throughout and participants
will experience the role of mediator, adviser and mediation party.
Day 4
This is a 'practice day' of shared learning in preparation for the assessed days. During the day each
participant will experience the role of Mediator, Party and their Advisor. There is a coach with each
group in every session, throughout the day providing guidance and input as the role play progresses.
The whole day is devoted to a single detailed case study and participants practise the skills at each
stage of a mediation. The training faculty coach small groups of participants through the case study
and provide personal feedback to the Mediator of that session. The mediation sessions are
interspersed with group discussions covering the key issues faced by the mediator. This is done in
order to focus on what is going well for the Mediator and what areas are to be developed in
preparation of the assessment days.
Days 5 and 6 (assessed days)
Each participant mediates one simulated case on each day. A faculty member observes each session
and assesses performance against a set of competencies. Individual feedback, group learning and
discussion continue alongside this assessment.
24
Consistency of delivery
A very detailed CEDR trainers' manual has been developed which, for each part of the course, sets out
the learning objectives, teaching methodology and debrief points, to ensure that quality and
consistency of delivery are maintained
Live demonstration of the mediation process
CEDR does not use video or power point to explain the process; rather we use live demonstration of
the phases of mediation, by the experienced CEDR lead trainers. Although this is more difficult and
more trainers it is highly effective in showing how the mediation process works and allows
participants to interact and ask questions.
Focus on process and skills in parallel
The skills mediators use are linked closely to the different phases of the mediation process. CEDR
therefore links relevant instruction in the skills to the examination of the phases of mediation.
Active-engagement through role play
Adults learn better by doing rather than just seeing, and therefore the CEDR course places emphasis
on participants practising the skills and process through role play and exercises.
Extensive coaching of participants
During role-play CEDR trainers provide coaching to the practising mediators by reference to a formally
defined and well tested competence framework which provided the basis for the assessment process
(see later). This ensures consistency of coaching across groups and maximises the opportunity for
participants to be successfully accredited.
Private one-to-one feedback
Course evaluations over the last 20 years consistently rate the level of 1-to-1 feedback given to
participants as one of the most valuable aspects of our course. During the last 3 days of the course,
coaches/assessors have a 15-minute private session giving specific feedback on areas that worked well
and areas which need to be developed. This feedback is given in a constructive and appropriate way,
using methodology developed over many years. A CEDR coaching and feedback manual has been
developed to ensure consistency of approach and quality delivery.
It should be noted that to achieve the coaching and feedback to the level set out above coaches have
to be present in each group for the whole mediated session. Clearly, to maintain this level of quality
there is an impact on cost, as more coaching personnel are required.
25
CEDR Accreditation
The Certificate of Accreditation is awarded to participants who demonstrate the level of competence
to achieve the status of CEDR Accredited Mediator. It is a highly challenging course, but
approximately 70 per cent of participants achieve accreditation.
The Foundation Course in Mediation Skills Certificate is awarded to acknowledge the participation of
those who do not achieve accreditation, and an opportunity to be reassessed may be available for
some participants.
26
Appendix B CEDR Mediator skills training course - Assessment guidance
Assessment will be made against eight competencies:
Relationship skills
1. Creates an environment conducive to mediation
2. Develops communication and interaction with each individual participant
Process skills
1. Establishes and maintains a safe and effective working structure
2. Manages the process and works through the phases of mediation
Content skills
1. Facilitates the parties in creating workable solutions
2. Enables momentum and progress through active engagement with the people and the
content
Written Assignments
1. Able to document areas of agreement between the parties
2. Able to learn through awareness of own strengths and weaknesses.
Relationship, process and content skills are assessed by CEDR faculty members through the
observation of candidates in simulated mediation situations. The remaining competencies are
assessed through written work submitted after the completion of the course.
The guidance under each competency identifies activities, skills and approaches that may be used to
demonstrate competence. The guidance under each competency is exactly that – guidance. It is
unlikely that a candidate will have the opportunity to exhibit all the points listed. The list is not
exhaustive.
The assessment categories are as follows:
O Outstanding = the mediator demonstrates great ability in this competency
C Competent = the mediator is competent
W Working towards = the mediator achieves some attributes and is working towards the
required level of competence
N N = the mediator does not achieve the competency
I/E I/E = insufficient evidence. There was no opportunity for the mediator to exhibit
competence in this area
27
Relationship skills
1 Creates an environment conducive to mediation
Sets the scene and sets the tone
conveys energy, enthusiasm and personal warmth
appears relaxed, alert and confident with the process
makes good use of the physical environment
attends to participants’ comfort and needs
motivates parties and representatives to participate
Builds confidence and trust
establishes the mediator’s authority
communicates in an assured, open manner, verbally and non-verbally
demonstrates neutrality through equal treatment of the parties and use of non-
judgmental language
has prepared well and appears well-prepared
recognises issues of discrimination, equality and diversity and manages any perceived
power imbalance
defuses unhelpful tension and harnesses constructive tension
is sensitive to team dynamics and manages intra-team relationships
adapts to different individual and corporate cultures
Key Personal Attributes: humanity, integrity, alertness and verve
2 Develops communication and interaction with each individual participant
establishes rapport quickly with the parties and others present
encourages parties to talk and to express what matters to them by using open
questions and other communication skills
listens attentively, prompts, paraphrases, and reflects back
demonstrates understanding of each party’s situation, their perspective and their
feelings about it
uses silence positively, and maintains good balance of airtime between mediator and
participants
recognises, respects and responds to expressions of emotion
allows parties to express emotion in order to enable progress
uses awareness of body language, own and others, to enhance communication
acknowledges the significance to parties of problems and issues
uses touches of humour effectively
frames, reframes and uses language flexibly so as to influence participants positively
Key Personal Attributes: humanity and imagination
Process skills
1 Establishes and maintains a safe and effective working structure
Takes responsibility for the process: the principles
explains roles, responsibilities and procedures to the participants
demonstrates familiarity with the procedure, structure, ground rules and responsibilities
within the mediation process
respects and preserves confidentiality
manages the process with confidence
remains in charge of the process throughout
handles challenges to the process or the mediator calmly and with authority
is alert to ethical dilemmas and handles them safely
Key Personal Attributes: integrity and responsibility
2 Manages the process and works through the phases of mediation
Takes responsibility for the process: the practicalities
opens the mediation well
works through the process fully
adopts a pace which is responsive to the needs of the parties
summarises and checks before moving on, especially at the end of private meetings
makes decisions about the order of events and the use of private and joint meetings,
consistent with progress
chairs any joint sessions in a manner that encourages a productive conversation to take
place
manages transitions between sessions
keeps all participants informed regarding the process, and anticipates and flags up
possible process choices
helps participants to use the time productively by setting tasks or creating working
groups
keeps notes, as necessary, unobtrusively
manages time well
uses any visual aids or flipchart purposefully
manages own pace, energy level and emotions; takes time for reflection between
meetings
Key Personal Attributes: humanity, stamina and verve
© CEDR 29
Content skills
1 Facilitates the parties in creating workable solutions
motivates parties and representatives to take responsibility for the outcome of the mediation
and to make their own decisions
allows the parties to determine the content
keeps options open, avoiding premature commitment to solutions
generates an atmosphere of creative problem solving and keeps a horizon of settlement in view
for everyone
establishes any common ground and finds practical ways to interrelate parties’ goals
remains alert to and picks up on areas for further attention - including legal, commercial and
personal aspects
helps parties move from emphasis on rights to a future focus on interests, priorities and options
for resolution
guides parties to move between attention to the detail and awareness of the bigger picture to
assist progress
uses hypothetical questions and other techniques which expand possibilities for settlement,
including non-financial elements
takes account of any previous settlement offers
highlights any lessons to be drawn from the causes of the dispute that may affect proposed
settlement terms
uses strategies to overcome deadlock
draws together options into a coherent settlement package
helps parties think through details and test that a proposed solution is workable
Key Personal Attributes: determination, stamina, imagination and commerciality
2 Enables momentum and progress through active engagement with the people and the
content
identifies and probes issues
explores positions to gain an understanding of underlying interests, needs, beliefs and priorities
creates opportunities for dialogue and flow of information between the parties
manages information exchange tactically to good effect
uses a range of types of questions to work with the content; for understanding, probing and
challenging
enables parties to see the situation from a broader perspective including the other party’s point
of view
picks up on verbal and non-verbal cues to promote progress
manages parties’ expectations
works well with numbers, and helps parties to formulate proposals to have a positive impact
helps participants to save face for themselves and each other
© CEDR 30
recognises and works with different negotiating styles and tactics, and coaches parties to
negotiate effectively
encourages the parties to re-evaluate their own and each other’s position
challenges and tests reality to encourage movement, whilst retaining the trust of the parties
helps parties to reassess risks and benefits of particular outcomes, including failure to agree
© CEDR 31
Written assignments
The following competencies are assessed on the basis of a written assignment that the participant
sends to CEDR following completion of day five of mediator training.
1 Able to document areas of agreement between the parties
covers relevant areas in detail
reflects the spirit of the mediation in choice of language
produces a written agreement which is clear, concise and unambiguous in terms of language.
2 Able to learn through awareness of own strengths and weaknesses
In relation to mediation:
is willing to assess own strengths and weaknesses realistically
identifies specific learning from past experience (personal and professional)
gives one or two examples of how learning has led to changes in behaviour
comments on specific feedback received during the course (from colleagues and/or faculty)
identifies specific learning from the experience of being the mediator on the course
identifies other specific learning that has heightened awareness of own strengths and weaknesses.